(dissenting).
I respectfully dissent from the conclusions reached in the majority opinion on defendant’s tax liability.
It is undisputed that the taxpayer is an Iowa corporation domiciled in that state; that its business is the manufacture and sale of cement and cement products; and that it maintains its home and principal business offices, as well as its manufacturing plant, at Mason City, Iowa.
Taxpayer has never qualified under M. S. A. 303.03 as a foreign corporation authorized to do business in the State of Minnesota, nor does the record indicate that the staté has ever demanded such qualification or compliance with that statute. There is no indication from the record that this state could demand such compliance nor that it could deny defendant the right to freely engage in interstate commerce within its borders.
Taxpayer admits that, while engaged in interstate commerce in the manufacture and sale of its products, it has over a period of approximately 30 years found a market for a large amount of its products in Minnesota, but alleges that it has operated in the same manner in Iowa, Nebraska, North Dakota, South Dakota, and Wisconsin. Taxpayer has never filed income tax returns in this state. The state commissioner of taxation determined to claim part of the income earned by taxpayer as taxable by Minnesota, and upon taxpayer’s refusal to file returns, he prepared the returns in his own office on the basis of information available to him and caused them to be filed.
The commissioner used the so-called three-factor formula described in § 290.19 in determining the portion of defendant’s overall net income which was to be allocated to Minnesota and subjected to the income taxes imposed by this state. The three factors specified pursuant to the statutory formula were: (1) The ratio of the taxpayer’s sales made in *53Minnesota during the year to its total sales for the year wherever made; (2) the ratio of the taxpayer’s total tangible property used in the business that year to the total tangible property wherever situated; and (3) the ratio of the taxpayer’s total payroll in Minnesota for the year to its total payroll for its entire business that year.
The figures arrived at in the commissioner’s returns were demanded from taxpayer under § 290.03 and Minnesota Income Tax Regulations, Reg. 2003(1), as applicable to income tax on corporations.26 The total alleged tax deficiency, if collectible, is not in dispute.
During the relevant business years taxpayer maintained only one office in this state. That office, located in Minneapolis, was occupied under a lease negotiated and paid for from the home office at Mason City, Iowa. Taxpayer did not own or occupy a warehouse or storage or manufacturing plant in this state. It owned no real estate here, and its only personal property in this state was its salesmen’s automobiles, its office furniture, and a small amount of supplies and goodwill advertising material. The Minneapolis office was a sales office where taxpayer’s salesmen met customers. The office consisted of three small rooms and contained three desks, two filing cabinets, a typewriter, and some chairs. All personal property including salesmen’s automobiles and office supplies except postage stamps were requisitioned from the home office and were bought and paid for there.
During the years involved five salesmen were employed in this state. Two operated from the Minneapolis office and the other salesmen operated directly out of their homes at different points in the state. The only other employee was a secretary who worked at the Minneapolis office. All these employees were hired by supervisory personnel at taxpayer’s home office. At no time did any of the above employees possess or exercise authority to hire or fire other employees, nor did the *54employees have authority to purchase supplies other than postage stamps. Taxpayer did not maintain a bank account in this state, and all salaries paid Minnesota employees were fixed by the sales manager at Mason City and paid directly from the home office. Territories for each salesman were allocated at the home office, and no salesman had authority to reallocate. Customer entertainment expenses incurred in this state were paid directly from the home office. Employees were compensated by salary only, without provision for commissions.
The sales procedure was one of solicitation and taking orders. The salesmen received the buyer’s order which they forwarded to the home office. There the order was examined before acceptance. Buyer’s credit was subject to home office approval. If the order was accepted, the buyer was sent an acknowledgment from the home office and the cement product shipped directly to the buyer by rail, f. o. b. Mason City, Iowa. All merchandise was invoiced and shipped from Mason City directly to the buyer. All price quotations and changes thereof were sent directly to the customer from the home office. Prices were quoted at millsite rate at Mason City, Iowa, plus, for the buyer’s convenience, the freight to the buyer’s place of business. The salesmen were required to transmit all orders received to the home office daily. All contracts were executed at the Mason City office and then sent directly to the customer. Credit extensions and collections were handled only at the home office. The salesmen were without authority to accept or reject a customer’s order or to approve his credit. The buyer’s claim for loss or damage was handled only by the home office. Any claims presented to the salesmen were transmitted to the home office for disposition. The authority of the salesmen was limited to the solicitation of sales and promotion of goodwill, and for all practical purposes they were devoid of any managerial responsibility. There is testimony that one salesman had at times held himself out as defendant’s district manager. The record indicates doubt whether this was with or without taxpayer’s knowledge.
Based upon taxpayer’s activities as disclosed by the record connected with its operations in Minnesota, the trial court found that those activities consisted of a regular and systematic course of solicitation of orders for the sale of merchandise, such orders being subject to ap*55proval, acceptance, filling, and delivery by the taxpayer from its home office at Mason City, Iowa. The court found that a predecessor of defendant had resorted to the courts of Minnesota to enforce its contract on one occasion. The record does not disclose that the present defendant has at any time resorted to the courts of this state to enforce its contracts. The trial court in its memorandum, which was made a part of the decision in this case, stated “Obviously this tax is a tax upon the net income of a foreign corporation whose business is exclusively that of foreign commerce or interstate commerce or both.” (Italics supplied.) The court below also characterized taxpayer’s activities in this state as an integral part of its interstate activities, with all revenues received by it from customers’ sales in Minnesota resulting from its operation in interstate commerce.
The trial court, nevertheless, by its conclusions of law, determined in effect that taxpayer’s activities in Minnesota were sufficient in the local field to render it subject to the court’s jurisdiction and moreover subject to taxation based upon apportionment under the formula applied to determine taxpayer’s net income from its Minnesota activities. Based upon the findings made, it concluded that the tax as assessed, and if collected, does not contravene the due process clause of either U. S. Const. Amend. XIV, or Minn. Const, art. 1, § 7, nor does the tax as assessed conflict with or violate the commerce clause, U. S. Const, art. I, § 8, clause 3.27
Even though the position of the taxpayer herein that mere solicitation does not constitute sufficient doing of business to subject defendant corporation to suit is somewhat persuasive, we take no issue with the majority opinion on its statement relative to service of process or the question whether the courts of Minnesota acquire jurisdiction of taxpayer.
*56Difficulties are encountered because of the natural inclination to equate amenability to service of process to jurisdiction to tax. Such, however, is not the case. Amenability to suit and imposition of the taxing power are distinct problems. While the service of process may well subject the taxpayer corporation here involved to jurisdiction in personam, there remains nevertheless the question of jurisdiction of the thing as distinguished from the jurisdiction of the person, even though in International Shoe Co. v. Washington, 326 U. S. 310, 321, 66 S. Ct. 154, 161, 90 L. ed. 95, 105, the United States Supreme Court stated:
“* * * The activities which establish its ‘presence’ subject it alike to taxation by the state and to suit to recover the tax.”
We consider the important questions on this appeal to be (1) whether M. S. A. 290.03 is in conflict with and violative of the due process clauses of U. S. Const. Amend. XIV, and Minn. Const, art. 1, § 7, insofar as it seeks to impose a tax on income of a foreign corporation which arises wholly out of sales and activities carried on and consummated exclusively in interstate commerce and, except for continuous and systematic solicitation on the part of its salesmen and their activities within the state, otherwise conducted exclusively without and beyond the borders of the State of Minnesota, and (2) whether § 290.03 is in conflict with and violative of the commerce clause, U. S. Const, art. I, § 8, clause 3, insofar as it seeks to impose a tax on the net income of taxpayer, a foreign corporation, whose business activities in this state were an integral part of its interstate activities and whose business consists exclusively of interstate commerce.
Deciding that the taxpayer, a foreign corporation, can be sued in Minnesota, does not decide that it is subject to being taxed in this state. The question of the application of the taxing power must be decided upon the merits. See, Kendall v. Orange Judd Co. 118 Minn. 1, 136 N. *57W. 291; 18 Fletcher, Cyclopedia of Corporations (Perm, ed.) § 8712. The operating incidence within the taxing state of the foreign corporation is controlling as to liability to taxation or other burdens which may be imposed upon interstate commerce measured by the multiple-burden test.
The claimed activities of the taxpayer’s soliciting salesmen allegedly give rise to the tax issue here. Jurisdiction in personam, not offensive to traditional notions of fair play, allows the trial court to proceed to decide the issues arising in the case on its merits.
Section 290.03, upon which the state relies for the collection of the taxes assessed against the taxpayer,28 in fact provides for an annual tax without designating the type of tax. The tax is measured by the net income according to the apportionment formula provided for in § 290.19. See, Western Auto Supply Co. v. Commr. of Taxation, 245 Minn. 346, 71 N. W. (2d) 797. Although the tax is measured by net income, and the commissioner of taxation and the taxpayer corporation do not contend that it is anything but an income tax, it has elements of an excise tax.
An excise tax is synonymous with a privilege tax. American Airways v. Wallace (M. D. Tenn.) 57 F. (2d) 877. The mere fact that the tax is measured by a percentage of net income does not prevent it from being an excise or privilege tax. Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113, 41 S. Ct. 45, 65 L. ed. 165.
An excise tax is an indirect charge for the privilege of following an occupation or trade, or carrying on a business; while an income tax is a direct tax imposed upon income and is as directly imposed as is a tax on land. United States v. Philadelphia, B. & W. R. Co. (E. D. Pa.) 262 F. 188. The constitutionality of the tax depends upon the substance of the statute and the real character of the tax, rather than upon the name given the tax by the legislature.
A tax measured by the income or earnings of a corporation may be in fact an excise or franchise tax, although the statute imposing the same does not so denominate it. Security Sav. & Commercial Bank v. District of Columbia, 51 App. D. C. 316, 279 F. 185.
*58However, determining that a tax is an excise tax on the privilege of doing business is not to decide the case. Practical operation, not descriptive labels, of the challenged tax statute must and will determine validity of application. Interstate Oil Pipe Line Co. v. Stone, 337 U. S. 662, 69 S. Ct. 1264, 93 L. ed. 1613. Mr. Justice Reed in a footnote in his dissent in that case noted (337 U. S. 677, 69 S. Ct. 1272, 93 L. ed. 1626):
“Since we perceive no difference for the purposes of this case between franchise, privilege, and excise taxes, insofar as they are exacted for the privilege of doing or the doing of interstate business, we have treated them as identical as far as their validity under the commerce clause is concerned.”29
In one of the opinions appearing in connection with the litigation of Spector Motor Service v. O’Connor (2 Cir.) 181 F. (2d) 150, 156, the court reviewed its function concerning state taxation of interstate commerce as follows:
“We should not be understood as claiming that the constitutionality of a tax should depend upon the name the legislature has given it. * * * Hence we do not suggest that the tax is automatically constitutional merely because it is measured by net income, and a net income tax has been held to be an indirect burden. Rather we should look to the actual operation of the tax and decide whether it discriminates against interstate commerce, whether it is unduly burdensome to interstate commerce, whether it attempts to reach activities outside the borders of the state, and whether it is susceptible of being repeated by any other state. If these questions are answered in the negative, if the tax is a fair and a just attempt to make all commerce, intrastate and interstate, bear its share of the costs of government, then the tax should be held valid.” (Italics supplied.)
See, also, Spector Motor Service v. Walsh (2 Cir.) 139 F. (2d) 809, including dissent by Judge Learned Hand.
*59A state’s area of taxation is limited by its geographical borders. Generally, where interstate commerce is involved, the general business situs of taxpayer being wholly in another state, property or the existence of business activities sufficient in the local field to be designated or classified as intrastate commerce must be found within the taxing state, affording an appropriate channel through which to tax, before that state may levy a tax which even indirectly affects the business of a foreign corporation. Where taxpayer is engaged both in interstate and in intrastate commerce, a state may tax the privilege of carrying on intrastate business and, within reasonable limits, in order to arrive at the measure of business within the taxing state, may compute the charge by applying the tax rate to a fair proportion of the taxpayer’s business done within the state and, as a basis for arriving at its apportionment, include in its calculations both interstate as well as intrastate business. It may be said that it is in substance the rule that the interstate commerce clause prohibits the state which is not the domiciliary one from taxing in any manner the act of engaging in interstate commerce within its limits and also from taxing property engaged in interstate commerce, when it may legally do so, at a higher rate than any other property. It would appear to be generally understood that every form of taxation directly imposed upon interstate or foreign commerce is prohibited to the states beyond all controversy and that the only question which arises in this class of cases is how far a state tax may incidentally affect the free flow of foreign or interstate commerce without falling within the inhibition implied from the exclusive power of Congress, to which the Constitution commits the regulation of commerce with foreign nations and among the several states. It would be a simple matter if the exact limits of the power of a state to levy taxes which incidentally affect interstate commerce were capable of precise definition. Decisions must be made depending upon the facts in each case since almost every tax imposed by a state in some degree affects interstate commerce. Always, the important question is whether interstate commerce is affected to an unconstitutional extent and whether the degree to which it is affected constitutes an undue burden upon such commerce.
In Alpha Portland Cement Co. v. Commonwealth, 248 Mass. 156, *60142 N. E. 762, it was held by the state court that a state may lawfully impose an excise tax on a foreign corporation engaged exclusively in interstate commerce provided the tax is measured by net income from the business transacted in the taxing state. It would appear that the Massachusetts court in the foregoing case and in Alpha Portland Cement Co. v. Commonwealth, 244 Mass. 530, 139 N. E. 158, based its decision upon the theory of remuneration for local protection and benefits without reference to the distinction drawn in some cases between local taxation of foreign corporations engaged exclusively in -interstate commerce and those engaged in both interstate and intrastate commerce.
The United States Supreme Court, however, in Alpha Portland Cement Co. v. Massachusetts, 268 U. S. 203, 45 S. Ct. 477, 69 L. ed. 916, reversed the decisions of the Massachusetts court in both cases, holding that the imposition of the tax was an unconstitutional burden on interstate commerce. The United States Supreme Court in that decision in effect denied altogether the power of the state to impose a tax in any form on a corporation engaged exclusively in an interstate business. As that court is the final arbiter of questions of the character involved, it must appear somewhat obvious that, until that decision is overruled or limited by the United States Supreme Court itself, it has thereby settled the question, not only of the power of a state to impose an excise tax, or even a net-income tax if the tax be denominated as such, on foreign corporations engaged exclusively in interstate commerce measured by income from business within the state, but of the power to impose a tax in any form on such corporations.30
It was laid down as a general rule in Adams Mfg. Co. v. Storen, 304 U. S. 307, 58 S. Ct. 913, 82 L. ed. 1365, that a state taxing statute which discriminates against interstate commerce is invalid. We think it well settled under the constitutional provisions involved here that interstate or foreign commerce may not be taxed by a state and that a state may not impose upon foreign corporations a tax for the privilege of engaging in such commerce except where the local incidence of the operations in the taxing state lays a basis for classifying such local operations as intrastate activity,31 or in essence as intrastate commerce.
*61Upon a state of facts similar to those of the instant case, the United States Supreme Court in Cheney Brothers Co. v. Massachusetts, 246 U. S. 147, 153, 38 S. Ct. 295, 296, 62 L. ed. 632, 636, said:
“We do not perceive anything in this that can be regarded as a local business as distinguished from interstate commerce. The maintenance of the Boston office and the display therein of a supply of samples are in furtherance of the- company’s interstate business and have no other purpose. Like the employment of the salesmen, they are among the means by which that business is carried on and share its immunity from state taxation. * * * We think the tax on this company was essentially a tax on doing an interstate business and therefore repugnant to the commerce clause.” (Italics supplied.)
The Supreme Court of the United States in holding that the attempted imposition of the income tax was void and repugnant to the commerce clause of the United States Constitution in the Alpha Portland Cement Co. case, relying on its earlier decision in the Cheney Brothers Co. case, said (268 U. S. 219, 45 S. Ct. 481, 69 L. ed. 924):
“The excise challenged by plaintiff in error is not materially different from the one declared unconstitutional in Cheney Brothers Co. v. Massachusetts, and cannot be enforced against a foreign corporation which does nothing but interstate business within the State. The introduction of an extremely complicated method for calculating the amount of the exaction does not change its nature or mitigate the burden.”
Thus, the United States Supreme Court struck down the attempted imposition of an income tax as unconstitutional when applied to a foreign corporation doing only interstate business in the taxing state, where no local incidence follows from the operational activities of a foreign corporation giving rise to intrastate business or commerce, holding, in that situation, that a state may not tax the interstate business of a corporation of another state.32 The principles of the latter cases were followed in Spector Motor Service v. O’Connor, 340 U. S. 602, 71 S. Ct. 508, 95 L. ed. 573.
*62The issue before the United States Supreme Court in that case had been rather distinctly stated by Judge Learned Hand in his dissenting opinion in Spector Motor Service v. Walsh (2 Cir.) 139 F. (2d) 809, 822, where he said:
“* * * we have before us in the barest possible form the effort of a state to levy an excise directly upon the privilege of carrying on an activity which is neither derived from the state, nor within its power to forbid.”
In Norton Co. v. Dept. of Revenue, 340 U. S. 534, 537, 71 S. Ct. 377, 380, 95 L. ed. 517, 520, the United States Supreme Court said:
“Where a corporation chooses to stay at home in all respects except to send abroad advertising or drummers to solicit orders which are sent directly to the home office for acceptance, filling, and delivery back to the buyer, it is obvious that the State of the buyer has no local grip on the seller.” (Italics supplied.)
In Memphis Steam Laundry Cleaner v. Stone, 342 U. S. 389, 72 S. Ct. 424, 96 L. ed. 436, Mr. Chief Justice Vinson speaking for the court made it clear that a tax, the operational incidence of which caused it to fall upon solicitation of interstate business, was a tax on interstate commerce itself. The court then stated why the tax would not be permitted to conflict with the constitutional mandate on the regulation of commerce beween the states (342 U. S. 395, 72 S. Ct. 428, 96 L. ed. 441):
“* * * The Commerce Clause created the nationwide area of free trade essential to this country’s economic welfare by removing state lines as impediments to intercourse between the states. The tax imposed in this case made the Mississippi state line into a local obstruction to the flow of interstate commerce that cannot stand under the Commerce Clause.”
Other cases that bear with considerable force upon the interstate commerce questions involved here are Ozark Pipe Line Corp. v. Monier, 266 U. S. 555, 45 S. Ct. 184, 69 L. ed. 439; Interstate Oil Pipe Line Co. v. Stone, 337 U. S. 662, 69 S. Ct. 1264, 93 L. ed. 1613; Joseph v. Carter & Weekes Stevedoring Co. 330 U. S. 422, 67 S. Ct. *63815, 91 L. ed. 993; McLeod v. Dilworth Co. 322 U. S. 327, 64 S. Ct. 1023, 88 L. ed. 1304; Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U. S. 157, 74 S. Ct. 396, 98 L. ed. 583; Freeman v. Hewit, 329 U. S. 249, 67 S. Ct. 274, 91 L. ed. 265; Adams Mfg. Co. v. Storen, supra; Gwin, White & Prince, Inc. v. Henneford, 305 U. S. 434, 59 S. Ct. 325, 83 L. ed. 272; Nippert v. Richmond, 327 U. S. 416, 66 S. Ct. 586, 90 L. ed. 760.33
The commerce clause of the Federal Constitution controls the respective powers of the state and Federal governments in connection with interstate commerce. The commerce clause is not merely an authorization to Congress to enact laws for the protection and encouragement of commerce among the states, but it is a commitment to it by the Constitution to regulate commerce with foreign nations and among the several states. It also creates an area of trade free from interference by the states, and none is permitted to take any action which may be deemed to impede the free flow of trade between states. We think the record clearly indicates that taxpayer is exclusively engaged in interstate commerce, subject only to a determination of the question whether the local incidence of its operations in Minnesota provide a basis for the assessment of the tax which the state seeks to impose and that under the decisions we have just referred to, to the extent that the taxpayer’s activities are exclusively in interstate commerce, there will be immunity from state taxation.
The governing principles, which were early stated in McCulloch v. Maryland, 17 U. S. (4 Wheat.) 316, 4 L. ed. 579; Brown v. Maryland, 25 U. S. (12 Wheat.) 419, 6 L. ed. 678, and repeated in Robbins v. Shelby County Taxing Dist. 120 U. S. 489, 7 S. Ct. 592, 30 L. ed. 694, indicate that the taxing power of the states has for the most part been closely scrutinized in the commerce field, while Congress, which has the power to lessen or take away immunity in the interstate commerce *64field in state taxation, has been slow to interfere, except in a limited way and in limited and prescribed fields with the added burden light and controllable, where to do so would impede the free flow of trade between the states. A burden on interstate commerce is no less objectionable because it is imposed by a state under the taxing power rather than under the state police power. Freeman v. Hewit, supra. Interstate commerce should bear its fair share of the tax load. Western Live Stock v. Bureau of Revenue, 303 U. S. 250, 58 S. Ct. 546, 82 L. ed. 823. However, to suggest that a tax on interstate commerce is valid because a similar tax is placed on local trade is to disregard the commerce clause. Freeman v. Hewit, supra. So long as the commerce clause is recognized as preventing any interference with interstate trade, there will be discussion concerning the conflicting claims of the state taxing power and the commerce clause. See, Hartman, State Taxation of Interstate Commerce: An Appraisal and Suggested Approach, 1953 Wash. U. L. Q. 233; Kraus, The Implications of the Spector Motor Service Case, 56 Dickinson L. Rev. 107; see, also, list of articles in Spector Motor Service v. O’Connor (2 Cir.) 181 F. (2d) 150, 154.34
As has been so often stated, not all burdens upon commerce, but only undue or discriminatory ones, are forbidden. Western Live Stock v. Bureau of Revenue, supra; McGoldrick v. Berwind-White Co. 309 U. S. 33, 60 S. Ct. 388, 84 L. ed. 565. Although interstate commerce must pay its way, a state cannot put a barrier around its borders to bar trade from other states and thus run contrary to the power in Congress to regulate commerce among the states.
In Miller Brothers Co. v. Maryland, 347 U. S. 340, 74 S. Ct. 535, 98 L. ed. 744, there was no duty on an out-of-state merchant to collect and remit a tax on the use, storage, or consumption of articles, even though the vendor’s advertising with papers and radio stations of its home state reached the people in the taxing state; its occasional sales *65circulars mailed to all former customers included customers in the taxing state; and some of the purchases were delivered in the taxing state by common carrier and some by the vendor’s own trucks. There was not sufficient local incidence to sustain the taxing power.
In Norton Co. v. Dept. of Revenue, supra, the United States Supreme Court sustained a tax on gross receipts from all sales to persons in Illinois, except on orders sent directly by the customers to the head office and shipped directly to the customers from the head office. The exception made is significant because of the similarity of facts in the case at hand where orders were sent to Mason City, Iowa, for acceptance and shipment of goods f. o. b. Mason City. The local incidents were a branch office which made local sales at retail from a limited inventory carried there, received orders and forwarded them to the head office for action there, and acted as an intermediary to reduce freight charges on goods shipped from the head office. The case is distinguishable because of the existence of a substantial retail sales outlet, not found in the instant case.
In Nippert v. Richmond, supra, a license tax was invalidated. The tax had been imposed upon a solicitor who had been in the city for five days soliciting orders for out-of-state confirmation and shipment into the state. Notwithstanding that only casual solicitation was involved, the case is persuasive for the proposition that mere solicitation is not sufficient to uphold the application of the tax. However, because the court questions the conclusiveness of the local-incidence test, use of the case may not be well taken. The court states that local incidence will be weighed along with the danger of multiple-burden taxation. The court also states that it would be possible to find local incidence in any case (327 U. S. 423, 66 S. Ct. 589, 90 L. ed. 764):
“* * * All interstate commerce takes place within the confines of the States and necessarily involves ‘incidents’ occurring within each State through which it passes or with which it is connected in fact.”
Included in this statement is the recognition that interstate commerce must necessarily be carried on within the states (327 U. S. 423, 66 S. Ct. 589, 90 L. ed. 764):
“It has not yet been decided that every state tax bearing upon or *66affecting commerce becomes valid, if only some conceivably or conveniently separable ‘local incident’ may be found and made the focus of the tax. This is not to say that the presence of so-called local incidents is irrelevant. On the contrary the absence of any connection in fact between the commerce and the state would be sufficient in itself for striking down the tax on due process grounds alone; and even substantial connections, in an economic sense, have been held inadequate to support the local tax.”
Thus, the United States Supreme Court gives consideration to the operating incidence of the tax. No case has ever actually departed from the basic principle that interstate commerce cannot be taxed by the states in the absence of local or intrastate business.
In McLeod v. Dilworth Co. supra, the United States Supreme Court made it clear that a tax cannot be collected by the buyer’s state on orders solicited in one state, accepted in another, and shipped at the purchaser’s risk. The mere solicitation of orders is not sufficient local incidence to support the tax.
In Cheney Brothers Co. v. Massachusetts, supra, from which we have quoted, it is clearly established that a foreign corporation is not subject to taxation when it merely maintains salesmen in the taxing state who have no power to confirm orders or collect accounts, or adjust complaints. The taxpayer was a Connecticut corporation engaged in manufacturing and selling silk fabrics. It maintained a selling office in Boston with one office salesman and four other salesmen, who, like those employed by the defendant company in Minnesota, solicited and took orders subject to approval by the home office in Connecticut, and the corporation shipped goods directly to the purchasers. No stock of goods was kept in the Boston office other than samples used in soliciting and taking orders. The Boston office retained copies and records of orders taken but did no bookkeeping and made no collections. The salesmen and the office rent were paid directly from the home office, and other expenses of the Boston office were paid from a small account kept in Boston for that purpose. The corporation did no other business in the state.
In Alpha Portland Cement Co. v. Massachusetts, supra, heretofore *67alluded to, which follows the Cheney case, we have a New Jersey cement company maintaining an office in Boston, Massachusetts, in the charge of a district sales manager where the corporation’s correspondence and other activities in connection with the solicitation of orders could be carried on. Orders received at the Boston office were transmitted to the principal office of the corporation in Pennsylvania for acceptance. All goods and invoices were sent directly to the customer. Payments were usually made to the Pennsylvania office, but, unlike the instant case, occasionally salesmen accepted payments. No samples or other merchandise were kept in Massachusetts. Its only property in that state was its office furniture and fixtures. Salaries and office rent were paid from the home office. Unlike the instant case, an incidental-expense bank account was maintained. The activities of the Alpha Portland Cement Co. in Massachusetts were more extensive than those of the defendant company in Minnesota; yet the United States Supreme Court struck down the tax as invalid.
Memphis Steam Laundry Cleaner v. Stone, supra, stated the function of the courts (342 U. S. 392, 72 S. Ct. 426, 96 L. ed. 439):
“The State may determine for itself the operating incidence of its tax. But it is for this Court to determine whether the tax, as construed by the highest court of the State, is or is not ‘a tax on interstate commerce.’ ” (Italics supplied.)
Whether or not solicitation of interstate business may have some semblance of being a local incident, the United States Supreme Court has not permitted state taxation of this integral part of interstate commerce. Memphis Steam Laundry Cleaner v. Stone, supra, and cases cited therein.
The state places a great deal of reliance on International Shoe Co. v. Washington, 326 U. S. 310, 66 S. Ct. 154, 90 L. ed. 95, in support of its position. That case is chiefly important for its holding rendering the interstate corporation amenable to suit in the state courts on the basis of a finding of certain local incidents in addition to solicitation. The imposition of the state unemployment compensation tax cannot be questioned. The commerce clause authorizes Congress to regulate interstate commerce. Congress by statute, now coded as 26 USCA, *68§ 3305(a), has authorized the levying of the state unemployment compensation tax. Thus, since Congress has the power to authorize such a tax, there is no basis for attacking the tax on commerce-clause grounds. The International Shoe Co. case is distinguishable because there is no similar Congressional authorization for the levying of the Minnesota tax.
The state in its argument makes a point of admitting that a tax on the privilege of engaging in interstate commerce would be unconstitutional. However, the state goes , on to argue that application of an income tax under the three-factor formula may be legally and constitutionally applied, even though there is no intrastate commerce or local incidents amounting thereto. Clearly this is contrary to the admitted rule that a state cannot tax the privilege of engaging in interstate commerce. The tax here involved imposes a direct tax upon interstate commerce. If the taxpayer is engaged exclusively in interstate commerce, then its imposition is violative of the commerce clause and unconstitutional. It must find intrastate commerce activity to support its imposition or it is void as a direct tax. The state definitely argues the competitive privileges and advantages taxpayer has enjoyed over the years selling its cement products to Minnesota dealers. Unless taxpayer is actually engaged in intrastate commerce as such, in some form, and not engaged exclusively in interstate commerce, the state’s contention without that local incidence as a base amounts to arguing for the imposition of the tax based upon the privilege, which taxpayer constitutionally enjoys free from state-tax intervention, of transacting its interstate business in the field of commerce between the states.
The present views of the United States Supreme Court are clearly set out in Spector Motor Service v. O’Connor, 340 U. S. 602, 71 S. Ct. 508, 95 L. ed. 573. The court stated that interstate commerce cannot be taxed by the states in the absence of local or intrastate business. The dictum, suggesting otherwise, in Memphis Natural Gas Co. v. Beeler, 315 U. S. 649, 62 S. Ct. 857, 86 L. ed. 1090, was repudiated. The court stated (340 U. S. 608, 71 S. Ct. 512, 95 L. ed. 578):
“* * * xhe incidence of the tax provides the answer. The courts of Connecticut have held that the tax before us attaches solely to the franchise of petitioner to do interstate business. The State is not precluded from imposing taxes upon other activities or aspects of this busi*69ness which, unlike the privilege of doing interstate business, are subject to the sovereign power of the State. Those taxes may be imposed although their payment may come out of the funds derived from petitioner’s interstate business, provided the taxes are so imposed that their burden will be reasonably related to the powers of the State and nondiscriminatory.
“This Court heretofore has struck down, under the Commerce Clause, state taxes upon the privilege of carrying on a business that was exclusively interstate in character. The constitutional infirmity of such a tax persists no matter how fairly it is apportioned to business done within the state. Alpha Portland Cement Co. v. Massachusetts, 268 U. S. 203 (measured by percentages of ‘corporate excess’ and net income); Ozark Pipe Line Corp. v. Monier, 266 U. S. 555 (measured by percentage of capital stock and surplus). See Interstate Pipe Line Co. v. Stone, 337 U. S. 662, 669, et seq. (dissenting opinion which discusses the issue on the assumption that the activities were in interstate commerce); Joseph v. Carter & Weekes Co., 330 U. S. 422; Freeman v. Hewit, supra.” (Italics supplied.)
Although the case has been criticized as applying mechanical standards in determining what is the dividing point between interstate and intrastate commerce, there is no alternative so long as there can be no tax on the privilege of doing interstate commerce. The determination of what is interstate commerce must necessarily involve the analysis and distinguishing of facts. Freeman v. Hewit, supra.
The dissent in the Spector case not inappropriately states that there is (340 U. S. 612, 71 S. Ct. 513, 95 L. ed. 580) “apparent need for clearing up the tangled underbrush of past cases.” To reconcile all of the cases involving state taxation of interstate commerce would be a nearly impossible task. As stated before, there is comfort in recognizing that the courts consider each case on the basis of its own facts. See, Annotation, 44 A. L. R. 1228.
The state relies on a number of cases that unquestionably stand for the proposition that there can be no tax on the privilege of doing interstate business. United States Glue Co. v. Town of Oak Creek, 247 U. S. 321, 38 S. Ct. 499, 62 L. ed. 1135, held that a net-income tax was an indirect burden, thus not unconstitutionally imposed, noting that a *70gross-receipts tax is a direct burden. The case is distinguishable because the taxing state was the domicile of the interstate corporation. It maintained executive offices and an extensive manufacturing plant in the state of its domicile, the taxing state. No one would question the power of the state of Iowa to impose a net-income tax on taxpayer, domiciled there, yet engaged in interstate commerce, which would be the analogous situation.
The power of Iowa to impose a tax on taxpayer’s net income, although not to be decided here, suggests the danger of multiple taxation which is grounds for invalidation of the Minnesota tax. Western Live Stock v. Bureau of Revenue, 303 U. S. 250, 58 S. Ct. 546, 82 L. ed. 823. Taxpayer has its executive offices and manufacturing plant in Iowa. Under the multiple-burdens test, such state taxes on interstate business are invalid as are susceptible of being imposed with equal right by other states, so that interstate commerce is required to bear a heavier burden of taxation than is intrastate commerce.
In both Memphis Natural Gas Co. v. Stone, 335 U. S. 80, 68 S. Ct. 1475, 92 L. ed. 1832, and Interstate Oil Pipe Line Co. v. Stone, 337 U. S. 662, 69 S. Ct. 1264, 93 L. ed. 1613, a divided court upheld the imposition of a tax. The United States Supreme Court relied to some extent on the interpretation and application of the state statutory provision of “doing business” by the Mississippi Supreme Court. There was acceptance of the interpretation that the incidence of the tax was on local activities. The cases are distinguishable on the basis of finding local incidents of operation. Apparently, the United States Supreme Court has considered the pipeline cases to be best understood when taken together, even though the test is the same. In Memphis Natural Gas Co. v. Stone the court said (335 U. S. 89, 68 S. Ct. 1479, 92 L. ed. 1840):
“* * * This Court has drawn the distinction in the field of pipe line taxation between state statutes on the privilege of doing business where only interstate business was done and those upon appropriate local incidents.”
Local incidence of operation is controlling. Maintenance, repair, and manning of a pipeline was sufficient for the conclusion that the tax *71was on intrastate business.
Butler Brothers v. McColgan, 315 U. S. 501, 62 S. Ct. 701, 86 L. ed. 991, involved an interstate corporation which maintained one of its wholesale distributing houses in the taxing state. Each of its houses maintains stocks of goods, serves a separate territory, has its own sales force, handles its own sales and all solicitation, credit, and collection arrangements in connection therewith, and keeps its own books of account. Although the court did not apply the incidence of operation rule, it is clear that the court thought there was no question but that intrastate activity was involved. There was much more than mere solicitation in the Butler Brothers case, and thus the case is distinguishable.
West Publishing Co. v. McColgan, 328 U. S. 823, 66 S. Ct. 1378, 90 L. ed. 1603, affirming 27 Cal. (2d) 705, 166 P. (2d) 861, can be distinguished from the instant case because more than solicitation was involved. The salesmen were authorized to receive payments on orders taken by them, to collect delinquent accounts, and to make adjustments in case of complaints by customers. Although these activities are closely allied with solicitation, they are nonetheless activities in addition to the activities of mere solicitation. The West Publishing Co. case may be further distinguished from the instant case because therein the taxing statute, unlike § 290.03 as applied here under the apportionment formula, was limited in application to income from sources of books and periodicals delivered in the state seeking to impose the tax.
The Butler Brothers and West Publishing Co. cases, following doctrine set out in United States Glue Co. v. Town of Oak Creek, supra, apparently proceed on the theory that a net-income tax, even on an exclusively interstate business, is an indirect burden on commerce and thus valid. To so reason is to ignore the approach of determining whether there are local incidents to uphold a finding of intrastate business. To use the direct-indirect distinction is to a large extent to characterize a result. In discussing the various approaches used by the courts, one text writer stated:
“Prior to 1938, when the Court was declaring that interstate commerce was exempt from local taxation, a tax was saved by declaring that the effect of the tax on interstate commerce was ‘indirect,’ which is a fashion in judicial speech tantamount to the conclusion that the taxed *72event was not considered interstate commerce. A tax levied on the actual movement of interstate commerce, or on the privilege of engaging in, or on gross receipts from that commerce, or on the means and in-strumentalities used in interstate commerce (property taxes permitted) was struck down as having a ‘direct’ effect or being a ‘direct’ burden upon the commerce, which was another way of saying that there is no local power to tax interstate commerce.” Hartman, State Taxation of Interstate Commerce: An Appraisal and Suggested Approach, 1953 Wash. U. L. Q. 233, 241.
The local-incidents test, with a line drawn at solicitation in cases involving distribution of merchandise and goods, places emphasis on an analysis of the facts. The defendant company was careful in its operations in Minnesota. None of its activities, if we follow the Cheney, Alpha, Spector, and Memphis Steam Laundry Cleaner cases, as well as other numerous pronouncements by the United States Supreme Court, can be construed to extend beyond solicitation, nor the business thus conducted be other than exclusively interstate commerce. Nothing appears from the contentions and the arguments presented, oral or written, exhibiting extensive research by both sides, which renders the line of decisions beginning with the Cheney case inapplicable here. The doctrine therein announced has been adhered to and reaffirmed by the highest court since the advent of the Cheney case.
Notwithstanding that solicitation is an integral part of interstate business, there is alternative reasoning which could be applied to the cases already discussed. It is submitted that commerce-clause grounds are better taken, however, due process under Amend. XIV requires some connection between the taxing authority and the taxpayer. A recent pronouncement by the United States Supreme Court in Miller Brothers Co. v. Maryland, 347 U. S. 340, 344, 74 S. Ct. 535, 538, 98 L. ed. 744, 748, states:
“The question here is whether this vendor, by its acts or course of dealing, has subjected itself to the taxing power of Maryland or whether it has afforded that State a jurisdiction or power to create this collector’s liability. * * * Our decisions are not always clear as to the grounds on which a tax is supported, * * *; nor are all of our pro*73nouncements during the experimental period of this type of taxation consistent or reconcilable. * * * But the course of decisions does reflect at least consistent adherence to one time-honored concept: that due process requires some definite link, some minimum connection, between a state and the person, property, or transaction it seeks to tax.
“* * * Certain activities or transactions carried on within a state, such as the use and sale of property, may give jurisdiction to tax whomsoever engages therein, and the use of highways may subject the use to certain types of taxation. These cases overlap with those in which incorporation by a state or permission to do business there forms the basis for proportionate taxation of a company, including its franchise, capital, income and property.” (Italics supplied.)
The overriding principle evident in this case and others involving state taxing powers is that operating incidence of the tax is of primary consideration. Depending on the facts of each case, state taxing powers may or may not be exercised. As suggested, sales or use may be sufficient basis for the tax. The state of domicile, or the state in which a corporation has permission to do business, may when the required circumstances exist impose taxes. Even the least of these, permission to do business, may be the. subject of this tax. Mere solicitation, however continuous, has not been held sufficient to uphold a tax such as the one sought to be imposed here in any of the cases presented or any cases discovered through independent research.
Similar taxes have been invalidated at levels below the United States Supreme Court. In State v. American Can Co. 117 Colo. 312, 186 P. (2d) 779, a tax on the entire net income derived from business transacted within that state was invalidly applied to a corporation of another state engaged in interstate business. The facts, similar to the facts in the instant case, included solicitation by men whose orders must be accepted at one of its foreign offices for goods manufactured outside the state and delivered to points outside of the state for shipment to state customers in the taxing state. In contrast the Colorado court, a short time before the decision in the American Can Co. case, had decided Cruse v. Stayput Clamp & Coupling Co. 113 Colo. 254, 156 P. (2d) 397. The latter case involved a net-income tax on a corporation domiciled in Colorado, the taxing state. The corporation maintained its *74executive offices and manufacturing plant in Colorado. The court upheld the imposition of the tax. It is clear from these two cases that the domiciliary state may impose its net-income tax following the line of cases coming down from United States Glue Co. v. Town of Oak Creek, supra. However, the state attempting to apply its net-income tax to the interstate business of a corporation not domiciled in the taxing state must find local incidents of intrastate-commerce quality sufficient to uphold the tax.
In Matter of United Air Lines v. Joseph, 282 App. Div. 48, 121 N. Y. S. (2d) 692, there is similar invalidation of a gross-receipts tax, the question being whether there were sufficient local incidents to uphold the tax. The court in that opinion stated (282 App. Div. 54, 121 N. Y. S. [2d] 698): “The Western Live Stock case is misunderstood if one fails to note in reading the last two paragraphs quoted that in order to apportion a privilege tax on interstate commerce there must first be some local or intrastate commerce. Mr. Justice Stone so states, the authorities cited by him and omitted from the quotation, so held expressly, or involved such factual support for their holding.” It may be remembered that the Western Live Stock case is frequently cited as authority for a nondiscriminatory tax on interstate commerce. Nevertheless, as recognized by the New York court, there must be connection with the taxing state so as to support a finding of intrastate commerce. A case decided at the same time as the United Air Lines case, and relying thereon for similar finding of an invalid application of the tax, is Matter of United Piece Dye Works v. Joseph, 282 App. Div. 60, 121 N. Y. S. (2d) 683, wherein the court held that the mere selling of merchandise or services in a state other than one in which seller was located did not subject seller to tax jurisdiction in such other state.
For further support, see Farwell, Ozmun, Kirk & Co. v. Wallace, 45 N. D. 173, 177 N. W. 103, where a tax was held to be invalidly levied directly on the proceeds in the taxing state arising out of interstate commerce of a corporation not engaged in doing intrastate business.
A most recent pronouncement made by a state court, based upon a state of facts similar in many respects to that which presently confronts us, is to be found in Commonwealth v. Eastman Kodak Co. 385 Pa. *75607, 124 A. (2d) 100. In that case the judgment of the lower court that a foreign manufacturer of photographic equipment, which had no tangible property in Pennsylvania except salesmen’s automobiles and no office or place of business in Pennsylvania and was not registered to do business in the state and made no contracts therein, was not subject to the corporation income tax was affirmed by the Pennsylvania Supreme Court. The court held that the imposition of the tax on the corporation constituted a violation of the interstate commerce clause because it attempted to tax local business activities which were an integral part of the interstate flow of commerce that could not be separated from it. The persuasiveness of the Pennsylvania decision cannot be ignored. The Pennsylvania act under consideration openly states in the face of the commerce clause “A rule shall not be deemed to be inapplicable merely because all the tangible property or the expenditures of a corporation for wages, salaries, commissions or other compensation, or the gross receipts of the corporation, are found to be situated, incurred or received without the Commonwealth.” 72 Purdon’s Penn. Stat. Ann. (Perm, ed.) § 3420n-2. The Pennsylvania court characterizes this statement of its statute as indicating the true nature of the tax. The Minnesota act in the instant case does not expressly state that it attempts to tax on the basis of outstate factors, thus the cases might be distinguished on the basis of the acts; however, as recognized by the recent Pennsylvania decision, relying upon cases cited from the Pennsylvania Supreme Court and the United States Supreme Court, the substance and not the form will control, i. e., the nature of a tax depends upon its incidence, not upon its label. The Pennsylvania court reached the conclusion that in the absence of incidence on local operation which was not an integral part of interstate commerce the tax was invalidly imposed and that their Corporation Income Tax Law of 1951 in its application to the defendant therein was a violation of the interstate commerce clause and therefore unconstitutional.
The only marked dissimilarity in the facts in the latter case and the case at bar is that in the Pennsylvania case the defendant maintained no local office in the state from which its three resident salesmen operated, one of whom performed all of his services in Pennsylvania, and the fact that the Eastman Kodak Co. employed, besides its resident *76salesmen, 11 technical representatives who resided in Pennsylvania and who demonstrated to dealers and other users of photographic products the proper method to be employed in using defendant’s products, four of whom confined their services within the state, the others performing services within the state and other states. Its tangible property in the state consisted of 10 automobiles, valued at $13,569. The comparison as to tangibles may be made by referring to the statement of facts in the instant case where taxpayer owned five automobiles and a small amount of office furniture in a three-room office, requisitioned, arranged for, and financed through the home office. In Alpha Portland Cement Co. v. Massachusetts, 268 U. S. 203, 45 S. Ct. 477, 69 L. ed. 916, petitioner corporation maintained an office in the taxing state in charge of a district sales manager. In the Pennsylvania case the taxing authorities sought to levy what purported to be a net-income tax based upon the operation of a three-fold formula not unlike what was done in the case at bar. The Pennsylvania court in discussing the manner of application of the three-fold formula to the facts of the case said (385 Pa. 615, 124 A. [2d] 103):
“Notwithstanding the fact that the Act seeks to impose what it calls a property tax, it is clear that the tax, at least as far as the present defendant is concerned, is an excise tax for the privilege of doing business in Pennsylvania. Cf. Roy Stone Transfer Corp. v. Messner, 377 Pa. 234, 103 A. (2d) 700, supra. The formula which the Commonwealth applies to this defendant makes crystal clear, if it were not otherwise so, that this tax is not a property tax on the local property of defendant, namely, ten automobiles or on the income from local activities as such— it is an attempted excise tax on defendant’s interstate commerce business out of which there were no local activities which could be considered as not an integral or realistically inseparable part of interstate commerce.” (Italics supplied.)
We cite for purposes of illustration and comparison Matter of Gulf Oil Corp. v. Joseph, 307 N. Y. 342, 121 N. E. (2d) 360. An examination of this case indicates that the primary problem was the application of the apportionment formula. The court in that case accepted without question the finding that the taxpayer carried on substantial *77local intracity and intrastate sales activities as well as an interstate business.
Since we have a tax on sales, made from a foreign corporation’s (taxpayer’s) business establishment and manufacturing plant outside of the state and shipped on orders solicited in the state to state customers by rail (common carrier), f. o. b. Mason City, Iowa, pursuant to prices quoted to customer at millsite rate, plus freight, and since the taxpayer’s activities in the state form an integral part of its interstate activities, with all revenues received by it from customer sales in the state resulting from its operations in interstate commerce, the tax assessed in the instant case is a tax upon the net income of a corporation whose business is exclusively that of foreign commerce or interstate commerce, or both, and therefore in contravention of the commerce clause, U. S. Const, art. I, § 8, clause 3.
The state taxing statute, M. S. A. 290.03, for the reasons stated, is in its application to taxpayer, here, upon the facts submitted, a violation of the interstate commerce clause and therefore unconstitutional.
Stress has been laid, in the majority opinion, on McGoldrick v. Berwind-White Co. supra, as authority for the claim that upon the factual situation presented in the instant case a tax may be levied on taxpayer’s net income wholly derived from interstate commerce. In that regard reference is made especially to the statements of the court in the McGoldrick case that (309 U. S. 47, 60 S. Ct. 392, 84 L. ed. 570) “A tax may be levied on net income wholly derived from interstate commerce. Non-discriminatory taxation of the instrumentalities of interstate commerce is not prohibited.” These statements derive from the definite factual situation existing in that case and from the cases cited by the court in support of the conclusions reached regarding the application of the tax situation there presented. The taxpayer sold coal to New York public utility and steamship companies, being a Pennsylvania corporation engaged in mining coal in the latter state. The tax involved was a 2-percent tax upon receipts from every sale of tangible personal property sold within the city of New York. It was a tax laid upon every purchaser within the state, of goods sold for consumption, regardless of whether they had been transported in interstate commerce. Mr. Justice Stone, speaking for the majority of the court in that case, however, *78recognized the limitations imposed by the commerce clause and made it clear that certain types of taxation, by the states, are ruled out through the immunity afforded by the commerce clause. That statement is as follows (309 U. S. 48, 60 S. Ct. 393, 84 L. ed. 571):
“Certain types of tax may, if permitted at all, so readily be made the instrument of impeding or destroying interstate commerce as plainly to call for their condemnation as forbidden regulations. Such are the taxes already noted which are aimed at or discriminate against the commerce or impose a levy for the privilege of doing it, or tax interstate transportation or communication or their gross earnings, or levy an exaction on merchandise in the course of its interstate journey. Each imposes a burden which intrastate commerce does not bear, and merely because interstate commerce is being done places it at a disadvantage in comparison with intrastate business or property in circumstances such that if the asserted power to tax were sustained, the states would be left free to exert it to the detriment of the national commerce.”
It was held that the 2-percent tax laid upon every purchaser within the state, as applied to the Berwind-White Company, was without the possibility of such consequences. In that case taxpayer had asked the state courts to rule that the tax act did not apply to coal transactions which was the selling of coal to New York consumers for plants and steamships, particularly because the enabling statute expressly prohibits the city from imposing a tax upon (309 U. S. 58, 60 S. Ct. 399, 84 L. ed. 578) “any transaction originating and/or consummated outside the territorial limits of the City.” This question had been left unanswered by the state court which had wholly rested its decision on constitutional grounds. Upon a reversal and remand of the case, the United States Supreme Court in its opinion said (309 U. S. 59, 60 S. Ct. 399, 84 L. ed. 578):
“Upon the remand of this cause for further proceedings not inconsistent with this decision, the state court will be free to decide the state question, and the remand will be without prejudice to the further presentation to this Court of any federal question remaining undecided here, if the state court shall determine that the taxing statute is applicable.”
*79In Freeman v. Hewit reference was made to the Berwind-White case as follows (329 U. S. 257, 67 S. Ct. 279, 91 L. ed. 274):
“It has been urged that the force of the decision in the Adams case has been sapped by McGoldrick v. Berwind-White Co. * * *. The decision in McGoldrick v. Berwind-White was found not to impinge upon ‘the rationale of the Adams Manufacturing Co. case,’ and the tax was sustained because it was ‘conditioned upon a local activity, delivery of goods within the state upon their purchase for consumption.’ ”
Mr. Chief Justice Hughes, dissenting in the McGoldrick case, again made clear the principle which has been maintained throughout the years that the states cannot lay a direct tax upon interstate commerce. I am unable to agree that the McGoldrick case is controlling on the issues before the court in the case at bar. The case before us is one of interstate commerce in its most obvious form. We have here the imposition of a burden which intrastate commerce does not bear, and merely because interstate commerce is being done, places it at a disadvantage in comparison with intrastate business or property in circumstances such that if the asserted power to tax were sustained, the states would be left free to exert it to the detriment of the national commerce.
The tax will not be saved if it directly burdens interstate commerce. Adams Mfg. Co. v. Storen, 304 U. S. 307, 58 S. Ct. 913, 82 L. ed. 1365.
Interstate commerce cannot be taxed at all, even though the same amount of tax should be laid on domestic commerce, or that which is carried on solely within the state. Robbins v. Shelby County Taxing Dist. 120 U. S. 489, 7 S. Ct. 592, 30 L. ed. 694; Cooney v. Mountain States T. & T. Co. 294 U. S. 384, 55 S. Ct. 477, 79 L. ed. 934.
It has been said heretofore that a desirable, just, and general scheme for raising revenues might well be reached through the cooperation of the Federal government and the states so as to avoid the differentiations which beset the application of the commerce clause and at the same time protect both state and national governments in the difficult field of general taxation. The consideration of such a policy belongs in the legislative field and is for the Congress and not for the courts. So far *80Congress has not seen fit to lift or set aside the duty of maintaining the immunity of the interstate commerce clause as the Constitution prescribes. We cannot lightly brush aside the statement made by Mr. Chief Justice Hughes in his dissent in the McGoldrick case (309 U. S. 69, 60 S. Ct. 404, 84 L. ed. 583):
“* * * That immunity still remains an essential buttress of the Union; and a free national market, so far as it can be preserved without violence to state power over the subjects within state jurisdiction, is not less now than heretofore a vital concern of the national economy.”
If the immunity afforded by the interstate-commerce clause applies in the instant case as contemplated by the Federal Constitution, then the within tax has been imposed, no matter by what name it is designated, without authority on the part of the state to do so.
I think the judgment entered against defendant taxpayer in the court below should be reversed.
Reg. 2003(1) of Minnesota Income Tax Regulations 1955 (income tax on corporations) provides:
“All corporations, domestic or foreign, whose business within this State during any taxable year consists exclusively of interstate commerce, are subject to a tax imposed directly upon their taxable net income under the provisions of M. S. A. 290.03 (1). This provision requires the imposition of a tax on the net income from interstate commerce or foreign commerce assignable to Minnesota.”
U. S. Const. art. I, § 8, clause 3, provides:
''The Congress shall have power:
*****
‘To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;”
U. S. Const. Amend. XIV, § 1, provides:
“* * * ]q0 state shall make or enforce any law which shall abridge the *56privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law, * * *.''
Minn. Const, art. 1, § 7, provides in part:
“No person shall * * * be deprived of life, liberty or property without due process of law.”
See footnote 26.
As previously stated: “This court has repeatedly adjudged that * * * the judiciary will not regard mere forms, but will look through forms to the substance of things.” Western Union Tel. Co. v. Kansas, 216 U. S. 1, 27, 30 S. Ct. 190. 197. 54 L. ed. 355. 366.
See, Annotation, 44 A. L. R. 1228 to 1231.
Also, see, Annotations, 105 A. L. R. 11 to 67, and 117 A. L. R. 444 to 446.
Western Union Tel. Co. v. Kansas, 216 U. S. 1, 30 S. Ct. 190, 54 L. ed. 355.
Since the decision in the Spector Motor Service case, several of the highest state courts have ruled upon local taxes laid on exclusively interstate business declaring them void. Mississippi River Fuel Corp. v. Hoffman, 4 Ill. (2d) 468, 123 N. E. (2d) 503; Gross Income Tax Division v. Surface Combustion Corp. 232 Ind. 100, 111 N. E. (2d) 50; Roy Stone Transfer Corp. v. Messner, 377 Pa. 234, 103 A. (2d) 700.
Mr. Justice Black, concurring in Northwest Airlines v. Minnesota, 322 U. S. 292, 302, 64 S. Ct. 950, 955, 88 L. ed. 1283, 1290, said: “These problems, it seems to me, call for Congressional investigation, consideration, and action. The Constitution gives that branch of government the power to regulate commerce among the states, and until it acts I think we should enter the field with extreme caution.”